Commentary: Further Examination into the Unreliability of Confessions

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interrogator.jpgAfter some lengthy discussions about the interrogation process, following the conviction of Bennie Moses for the rape of his daughter over a nine-year period, it seems that there is a need to revisit the issue of false confessions.

To be extremely clear, in the Bennie Moses case, there is no reason to believe he falsely confessed. However, we do believe, with a good deal of justification, that the interrogation tactics used were improper, even if they were likely completely legal.

The Innocence Project cites the statistic that in about 25% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions or pled guilty. 

According to them, “These cases show that confessions are not always prompted by internal knowledge or actual guilt, but are sometimes motivated by external influences.”

Think about this. DNA enters into the picture only a small percentage of the time, which suggests that the number of people that have falsely confessed is probably much higher than the known numbers would indicate.

In Bennie Moses’ case, the substance of the confession, along with DNA evidence that was largely unexplained, leads us to the conclusion that he was still guilty of the charges, but that should not let authorities off the hook.

The jury in the Moses case was originally only allowed to see the six minutes of the interrogation which would constitute his confession.  However, defense attorney Emily Fisher argued that this took the confession out of context.

The actual confession occurred nearly nine hours into an interrogation that began at 6 pm and ended at 3 am.

Judge Mock allowed another edited version to be shown, this one showing about 42 minutes of dialogue where Mr. Moses denied committing any crimes.

Judge Mock announced at the outset of showing the video to the jury that he had selected the edit points, but even this extended version of the video does not do justice to the extent and length of the interrogation.

It did not show long periods where Mr. Moses was forced to wait as they used various tactics to wear him down.

Mr. Moses also took the stand in his own defense and thus faced cross-examination from Deputy DA Michelle Serafin.

Ms. Serafin, as she cross-examined Mr. Moses, tried to trip him up with regard to his confession.  She hammered on him, asking him why he lied to the police about committing the crime.  He told her that he decided to go along and tell them what they wanted, because he just wanted it to end and get it over with. 

He also said he realized that they were lying to him.

Omitted from what the jury saw was a section at the beginning of the interview, where Mr. Moses asked if he were under arrest.  The officer told him that he was not under arrest and he could leave at any time. Soon after, a sergeant came in and told him he’s not going anywhere.

In her closing statement, Ms. Fisher broke down the experience in a chart that showed the length of the interrogation and the section in which Mr. Moses finally broke down and confessed.

The problem for Mr. Moses is that he did not merely give up and slump his shoulders saying he did it.

Instead he said, “She just danced around and teased me in her nighties all night long.”  And he also talked about how she instigated the sex at times.

As we have observed previously, there would be no one who would make that kind of statement unless he thought of his daughter in sexual terms.

Under the conditions to which Mr. Moses was exposed, he probably would have broken down whether he had done it or not.  Fortunately for West Sacramento PD, he seems to have done it.  And even if the confession were thrown out, it would be difficult to throw out the guilty charge, given the broad swath of testimonial evidence.

But again, that should not excuse the police.

The New York Times ran an article, “Confessing to Crime, but Innocent.”  In it they highlight the case of Eddie Lowery, who spent ten years in prison for a crime that he did not commit.  The only evidence to tie him to a rape was a confession.

The Times reported, “At trial, the jury heard details that prosecutors insisted only the rapist could have known, including the fact that the rapist hit the 75-year-old victim in the head with the handle of a silver table knife he found in the house. DNA evidence would later show that another man committed the crime.”

“I beat myself up a lot” about having confessed, Mr. Lowery told the Times in a recent interview. “I thought I was the only dummy who did that.”

The Times reported that at least 40 others have confessed since 1976, where DNA evidence has later shown the confessions to be  be false, according to research by Grandon Garrett, a law professor at the University of Virginia.

Professor Garrett has an article that demonstrates how various incriminating facts can get into confessions, leading the police and prosecutors to conclude that the individual knew facts only the individual at the crime scene could know.  Often the police were the ones who introduced these facts.  Sometimes they were unintentional, other times they appear intentional.  Sometimes, they even introduced facts that turned out to be false, and they still were not caught.

Professor Garrett writes, “Scholars increasingly examine the psychological techniques that can cause people to falsely confess, and [they] document instances of known false confessions. This article takes a different approach, by examining the substance of false confessions, including what was said during interrogations and how the confession statements were then litigated at trial and postconviction. Doing so sheds light on the phenomenon of confession contamination. Not only can innocent people falsely confess, but all except two of the exonerees studied were induced to deliver false confessions with surprisingly rich, detailed, and accurate information.”

“We now know that those details could not have likely originated with these innocent people, but rather must have been disclosed to them, most likely during the interrogation process,” the Professor continues.  “However, our constitutional criminal procedure does not regulate the postadmission interrogation process, nor do courts evaluate the reliability of confessions.”

According to the Times article, the new research is opening eyes of defense lawyers.  “In the past, if somebody confessed, that was the end,” said Peter J. Neufeld, founder of the Innocence Project, to the Times. “You couldn’t imagine going forward.”

The notion that such detailed confessions might be deemed voluntary, because the defendants were not beaten or coerced, suggests that courts should not simply look at whether confessions are voluntary, Mr. Neufeld told the New York Times. “They should look at whether they are reliable.”

Professor Garrett told the NY Times he was surprised by the complexity of the confessions he studied. “I expected, and think people intuitively think, that a false confession would look flimsy,” like someone saying simply, “I did it,” he said.

Instead, he said, “Almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term used in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.”

Professor Garrett’s study found that more than half of the defendants were mentally disabled, under 18, or both.  None of these individuals had a lawyer present, which ought to be a regulation necessity for a confession.  About half of them were taken to the crime scene.

One of the scary findings is that eight of the defendants in Professor Garrett’s study were actually cleared before trial by DNA evidence, and yet convicted anyway.

The Times cited the example of an individual who spent 16 years in prison for a murder in Pennsylvania.  Wrote the Times, “Prosecutors argued that the victim may have been sexually active, and so the DNA evidence may have come from another liaison she had. The prosecutors asked the jury to focus on Mr. Deskovic’s highly-detailed confession and convict him.”

Steven A. Drizin, the director of the Center on Wrongful Convictions at the Northwestern University School of Law, stated to the New York Times in their article that the significance of contamination “could not be understated. While errors might lead to wrongful arrest,” he told the Times, “it’s contamination that is the primary factor in wrongful convictions.  Juries demand details from the suspect that make the confession appear to be reliable — that’s where these cases go south.”

“Jim Trainum, a former policeman who now advises police departments on training officers to avoid false confessions, explained that few of them intend to contaminate an interrogation or convict the innocent,” The Times reports.  “You become so fixated on ‘This is the right person, this is the guilty person’ that you tend to ignore everything else,” he said. The problem with false confessions, he said, is “the wrong person is still out there, and he’s able to reoffend.”

According to the article, Mr. Trainum argues in favor of videotaping entire interrogations. “Requirements for recording confessions vary widely across the country. Ten states require videotaping of at least some interrogations, like those in crimes that carry the death penalty, and seven state supreme courts have required or strongly encouraged recording.”

In fact, that is the recommendation of the Innocence Project as well, “the mandatory electronic recording of interrogations, which has been shown to decrease the number of false confessions and increase the reliability of confessions as evidence.”

You will note that there was an electronic recording of the interrogation here, although the edited playback may understate the nature of fatigue and other factors in creating the confession.

California does not require electronic recordings of confessions, but, again, it happened in this case.

Writes the Innocence Project, “For the recording of interrogations to be effective, the entire custodial interrogation must be recorded. This record will improve the credibility and reliability of authentic confessions, while protecting the rights of innocent suspects.”

They continue, “In some false confession cases, details of the crime are inadvertently communicated to a suspect by police during questioning. Later, when a suspect knows these details, the police take the knowledge as evidence of guilt. Often, threats or promises are made to the suspect off camera and then the camera is turned on for a false confession. Without an objective record of the custodial interrogation, it is difficult to gauge the reliability of the confession.”

They conclude, “For law enforcement agencies, recording interrogations can prevent disputes about how a suspect was treated, create a clear record of a suspect’s statements and increase public confidence in the criminal justice system. Recording interrogations can also deter officers from using illegal tactics to secure a confession.”

In this case, the key evidence was what Mr. Moses said.  When he talked about his daughter teasing him, he implied that he was sexually aroused by his daughter, something that an ordinary person would not state. 

This was not the product of an interrogation, it was simply a signal that Mr. Moses thought of his daughter in sexual terms.

The question that people must ask however, under the conditions in this interrogation, is if Mr. Moses would have eventually confessed, even if he had done nothing to his daughter.  We do not know the answer to that for sure, but it is a matter of concern.

I go further than the Innocence Project in this regard, but I do not believe there is a reason that it should be lawful for police to attempt to browbeat or trick or fatigue someone into a confession. There is never a reason to hold a guy for nine hours, to deceive him as to whether or not he is free to leave or the circumstances of his being held, and frankly there is no excuse to question the guy without a lawyer for that length of time.

The best protection against a false confession is to have a lawyer on hand.  If your response is that no lawyer would allow his client to confess, then I think the response should be exactly that.

Are confessions important for solving crimes?  Of course they are.  But the reliability of confessions enters into the equation, and we have a system that has tended to produce a number of false confessions.

People argue that I am merely soft on crime and criminals, but observe, if a crime was committed, and someone falsely confesses, that means that not only is an innocent person in prison but a guilty person is loose.

There are other issues at work here, as well.  The more educated someone is, the more likely they are to invoke their right to an attorney.  There is no way I would allow myself to be subjected to nine hours of interrogation unless a lawyer was present.  In fact, I would not even talk to the police without a lawyer present.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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44 thoughts on “Commentary: Further Examination into the Unreliability of Confessions”

  1. Musser

    “People argue that I am merely soft on crime and criminals, but observe, if a crime was committed, and someone falsely confesses, that means that not only is an innocent person in prison but a guilty person is loose.”

    I’ll tell you how I view this situation: and some of my issues with judicial watch:

    1. I agree that a nine hour interrogation is rediculous, is likely to produce erroneous results, and can present an issue on appeal.

    2. your last story on this rape case more or less explained what happened and I liked the story for the most part. but in your 2nd to last story on the gang rape case, you presented your personal opinion of what happened on the issue without providing your readers background knowledge on the case.

    3. you also presented that case exclusively through the lens of the defense, you repeated statements by the defendants and their attorney, but not the girl and the prosecution. and you admitted that you have a personal relationship to the defense counsel. that is why I am suspicious of stories like that and I don’t think you can blame readers for feeling that way.

    4. There are sloppy interrogations, crooked cops, corrupt DA’s. but there are also crooked Defense attorneys, who will argue anything, no matter how erroneous, to get their clients off. The OJ case was a shining example of how the defense manufactured out of thin air a claim that the police planted evidence, because they could not explain that evidence away. it appears judicial watch does not want to examine that flaw in the justice system, only the flaws in the prosecution side.

    5. there are false convictions and false aquittals.

    6. Citing a source like “the innocence project” is a glaring red flag. their title implies an agenda, and can only serve to undermine the credibility of your article. but I cannot tell you what to do. if you want to continue to cite sources like that, go ahead, but don’t blame your readers when they point out the flaw.

    7. you have stated one of overall beliefs is that the justice system needs to focus on rehabilitation as a goal. but that is not my belief. to a certain extent, the justice system is just that, justice. You said in your last article that the defendant appeared to “turn his life around.”

    now, I don’t know if you are aware of this, but there is a 99plus percent re-offend rate for sex offenders. Second, you have no way of truly knowing if he is turning his life around or not. you don’t see what he does behind closed doors.

    third, the justice system needs to make an example of this man, not merely to punish him, but as a deterrent to other would-be sex offenders. thus the justice system does need to be punitive to a certain extent.

  2. David M. Greenwald

    I appreciate your feedback. It’s helpful to me going forward particularly on how to present these stories, which are complex and have to be condensed for the sake of brevity and readability. I won’t claim to have the perfect forumla correct yet.

    I’m not going to respond to everything, but there are a few points that I think need to be made in response.

    I do not agree that I merely presented my personal opinion on the gang rape case. I interviewed the defendants and it was intended to be their story on what happened to them. I think that is valuable because these are guys who were acquitted and yet still struggling from the charges obviously.

    I’m hoping to have another story that examines the case in a more equal-handed perspective, laying out the prosecution’s case and the defendant’s case.

    I have not observed a case in Yolo County with a corrupt defense attorney. THe vast majority of the cases we have watched, the people are represented by public defenders or conflict counsel. There have been a few private attorneys, but I have not seen anything on par to the OJ case in Yolo County. I agree that these cases exist, I think they are exceedingly rare especially compared to what we see in Yolo County every day from the prosecution.

    There may be “false” acquittals, but for the most part, there may be guilty people who go free because the prosecution failed to prove their case beyond a reasonable doubt. The OJ case may be the example of a false acquital, where the jury ignored the overwhelming evidence and acquitted, but for the most part that is not what happens. Those are not false acquitals in my view.

    The Innocence Project is a very credible source, they do careful research, and they only involve themselves in cases where the convicted individual can prove with physical evidence their innocence. I think that augments the issues that we raise in Yolo by linking it to research performed around the country.

    “you have stated one of overall beliefs is that the justice system needs to focus on rehabilitation as a goal.”

    I’m not sure that I have said that. I do think there are crimes that imprisonment is not the appropriate punishment. I think most people who commit crimes will be released and therefore it is foolish to simply incarcerate and release. There is a reason why the recidivism rate is so high and part of it is that we fail to give those released the skills and tools they need to avoid their past lives. On the other hand, there are people that have shown themselves to need to be incarcerated for the rest of their lives.

    I will just state that people are generally shades of gray and we need to weigh what the proper punishment is, the threat to society they pose, how to mitigate that threat, and the costs involved in each.

  3. David M. Greenwald


    now, I don’t know if you are aware of this, but there is a 99plus percent re-offend rate for sex offenders.”

    This is where I start having a problem with your expressed views, and to some extent your mother’s as well. You state things without fully researching them.

    So here are some studies that show that you are no where near correct and you could have found them in less than five minutes had you simply googled it.

    “A 2002 study by the United States Department of Justice indicated that recidivism rates among sex offenders was 5.3%; that is, about 1 in 19 of released sex offenders were later arrested for another sex crime. The same study mentioned that 68% of released non-sex offenders were rearrested for any crime (both sex and non-sex offenses), while 43% of the released sex offenders were rearrested for any crime (and 24% reconvicted)”

    Here’s a 2008 WSJ article:

    “In debates over laws monitoring released sex offenders, it’s common to hear claims that they’re sure to commit more sex crimes. “‘What we’re up against is the kind of criminal who, just as soon as he gets out of jail, will immediately commit this crime again at least 90 percent of the time,” a California legislator told the New York Times in 1996. (Other examples of such rhetoric are collected here.) Fox News — like the Wall Street Journal owned by News Corp. — said of child molesters in 2005, “Not only are they almost certain to continue sexually abusing children, but some eventually kill their young victims.”

    But as my print column this week points out, the numbers don’t bear this out. Recidivism rates vary widely depending on which crimes are counted, the timeframe of the studies, and whether repeat offenses are defined by convictions, arrests, or self-reporting. But even the author of a widely published report suggesting a recidivism rate of 52%, Wisconsin psychologist Dennis Doren, told me of the notion that all sex criminals are likely to re-offend, “There is no research support for that view, period.” Dr. Doren, evaluation director at the Sand Ridge Secure Treatment Center in Mauston, Wisc., added, “You’re not talking to a bleeding-heart kind of guy here.”

    source: wsj ([url]http://blogs.wsj.com/numbersguy/how-likely-are-sex-offenders-to-repeat-their-crimes-258/[/url])

    So it is not just a fact, the figure you cited, you are parroting people who are either intentionally or unintentionally giving out evidence that has no basis in fact.

  4. E Roberts Musser

    dmg: “To be extremely clear, in the Bennie Moses case, there is no reason to believe he falsely confessed. However, we do believe, with a good deal of justification, that the interrogation tactics used were improper, even if they were likely completely legal.”

    How were they somehow “improper” if they were not illegal?

    Secondly, I am glad it is the “people” that make law and not any one individual. If law enforcement had no tools by which to obtain confessions, no confessions would ever occur. No lawyer is going to allow his/her client to confess. What is needed is some very straightforward mandates in place with respect to police interrogations –
    a) time limits;
    b) bathroom breaks;
    c) clear statements required by law enforcement as to whether it is a detention or arrest;
    d) videotaping of all interrogations.

    dmg: “”We now know that those details could not have likely originated with these innocent people, but rather must have been disclosed to them, most likely during the interrogation process,” the Professor continues. “However, our constitutional criminal procedure does not regulate the postadmission interrogation process, nor do courts evaluate the reliability of confessions.”

    If the defense in a case brings up the issue of how the confession was conducted and whether it was coerced, the court does in fact “evaluate the reliability of the confession”.

    dmg: “One of the scary findings is that eight of the defendants in Professor Garrett’s study were actually cleared before trial by DNA evidence, and yet convicted anyway.
    The Times cited the example of an individual who spent 16 years in prison for a murder in Pennsylvania. Wrote the Times, “Prosecutors argued that the victim may have been sexually active, and so the DNA evidence may have come from another liaison she had. The prosecutors asked the jury to focus on Mr. Deskovic’s highly-detailed confession and convict him.”

    A defendant is not necessarily “cleared” of a crime just bc their DNA was not present at the crime scene. Perps are notorious for making sure evidence does not appear at a crime scene. In the case of rape, the simple expedient of using a condom will do it…

    dmg: “In fact, that is the recommendation of the Innocence Project…”

    Ah yes, the Innocence Project – the lawyers that were able to get OJ Simpson acquitted… and of course we all know just how “innocent” OJ Simpson was…I would hardly ascribe to the Innocence Project the moniker “seekers of the truth”… They are far from pristine in their motives…

  5. David M. Greenwald

    ” No lawyer is going to allow his/her client to confess.”

    What does that tell you? Sometimes a person wants to confess to a crime. If they do willingly, then they will. You want police to be able to break someone, to trick them, or to otherwise coerce them into a confession. To me that is improper even though it is legal at this time.

    “Ah yes, the Innocence Project – the lawyers that were able to get OJ Simpson acquitted”

    The Innocence Project had nothing to do with OJ Simpson. The Innocence Project is a group that started to investigate cases where the individual was already convicted and determine, usually by DNA evidence, that they were actually innocent. OJ Simpson was acquitted by private attorneys like Johnny Cochran and the likes who were paid for by OJ at great personal expense.

  6. medwoman

    A couple of questions for Musser:

    1) Where did you find the 99% + recidivism rate for sex offenders ? In reviewing the literature, the rate seems to
    Vary substantially – Hanson and Bussiere meta analysis of total sample of 23,393 subjects found a 13.4 recidivism rate with 4-5 year follow up and when extended to 15-20 years never exceeded 40%. Doren 1998 found a 52% recidivism rate over 25 years.
    While this is not a rosy picture, it is no where near the 99% statistic you are quoting.

    2) why do you feel that citing a source like ” the Innocence Project ” is a glaring red flag ? And a red flag for what ?
    The Innocence Project is intended and designed to identify individuals who have been erroneously convicted. While that is their mission it does not automatically mean that they will lie or distort information any more than would any other organization with a limited mission, the DAs office for example. A look at the numbers on exonerations after the availability of DNA testing ( Exonerations in the United States 1989-2003)
    Citing 328 cases during that 15 year period in which the defendant was officially declared ” not guilty of a crime for which he or she had been previously convicted.” ) would suggest the value of such a group.

    3) What is your evidence that punishment of others serves as a deterrent to sex offenders ?
    Deterrence is predicated on the potential offender logically analyzing first the probability that he or she will be caught and the severity of the punishment they are likely to face. I would like to see the evidence that potential offenders make such a risk benefit analysis before committing their crime.

  7. hpierce

    [quote]What is needed is some very straightforward mandates in place with respect to police interrogations – … d) videotaping of all interrogations. [/quote]Interesting idea… at first, I thought, no way… but as I think longer, if the confession is brought to court and then becomes a “public record”, why wouldn’t ALL of the conversation become a public record, subject to the PRA? However, my stipulations would be that both the defense AND the prosecution have unfettered access and admissibility of it (except where portions may be subject to attorney/client privileges), AND that anything disclosed and taped could be used in even unrelated cases (again both prosecution/defense). You may have a very good idea here, ERM…

  8. E Roberts Musser

    dmg: “This is where I start having a problem with your expressed views, and to some extent your mother’s as well. You state things without fully researching them.”

    First of all, my opinions and those of my son are separate. We do not see eye to eye on many things. Secondly, what specifically have I stated that you feel was not fully researched? Third, your sources seem to be the NY Times and the Innocence Project, both sources having a very left leaning liberal bias or a pre-concieved agenda. The Innocence Project is headed by Barry Scheck and Peter Nuefeld, both of whom were lawyers for OJ Simpson. If you have ever watched documentaries on the Innocence Project, you know very clearly they and the Innocence Project has a definite agenda…

    In fact in one documentary, I watched them argue against a second DNA test of their client, when the first DNA test was highly questionable. They did not care about whether this guy was innocent or not, they were looking for another notch on their belt…

  9. hpierce

    David… am just saying that the laws can be changed. The PRA CAN be expanded. You often like to think “out of the box”… GOOD… so do I…

  10. Roger Rabbit

    Exclusionary rule means any evidence discovered under illegal or improper means will be suppressed and will NOT be allowed to be used to prosecute the suspect. Also tied to the [b]“Fruits of the poisonous tree”[/b] expression, meaning if the Gov (LE or DA) does something wrong which leads them to other evidence, since they poisoned the tree so to speak with the wrong actions, any fruit/evidence, that the tree produces is also bad and cannot be used. Therefore the bad evidence would be suppressed.

    [i]Lying to defendants are legal[/i], cops, on instructions from the DA will use many means to get confessions. They will bring false fingerprints and tell the suspect they were found at the crimes scene, they will bring in the same brand of cigarette of suspect and tell the suspect they have his DNA, lying to suspects to get confessions are legal, approved by the courts and encouraged by the DA. Why would anyone think that the DA cares if the confession is true? Think about it, he tells cops it is ok to lie and trick the suspect to get a confession, how can that be taken as seeking or searching for the truth? [u]If the only way to make a case better is to lie and fabricate evidence in order to trick a confession how can that be considered honest or presumed innocent?
    [/u]
    Crooks need to use the same play book the DA uses. [b]The DA denies every accusation, he never admits to any wrongdoing and he always demands proof.[/b] If all people followed his example false confession would not be an issue. Of course DA Reisig does not get subjected to 9 or 10 hours lies and tricks about fake evidence so he can’t be tricked into confessing his acts. The DA cannot be recorded and then have the tape cut, spliced and edited so only certain parts can be used against him. Learn from the best people, deny everything, admit nothing and demand proof. This is the code of beating the system and the DA knows it well. For that fact all lawyers, bar members, know this. You will never see a lawyer give a statement, you will not see them cooperate with the Gov and they will always request legal counsel and refuse to make any statement. They do it since they know it works.

    But as most know, most people in the criminal justice system, suspects, are not that educated or savvy and are fearful of the cops, are intimidated by the thought of going to jail, so they are much more vulnerable to fear tactics, fake evidence, lies by the police which are all done in order to induce a confession. [b]The cops are not the bad guys here, they are only playing by the rules that the lawyers created.[/b] How can people claim that our system is fair and impartial when they allow and legalize such tactics? It is not fair to the general public when the rules are only known and used by the Gov lawyers and then used against and used to trick the general public. Sure some will say they were read their rights so they knew, hearing your rights when locked up, handcuffed, being held by police in uniforms with guns does not give most people a feeling of power or control. Remember the legal phrase “totality of circumstances”. See it as the person going through it sees it.

    [i]Once again it is shown, the system, especially in Yolo with DA Reisig at the top, that proof, tactics, confessions and seeking the truth, all take a back seat for other objectives.[/i]

    Technically speaking the cops messed up here. They should not have recorded the entire interview so it could not be used against them, they should have used their legal tactics and tricks, wore the suspect down for 8.5 hours with the recording off and then started recording only the last half hour, so they only had the confession recorded. That way the DA could say prove what the cops did for unrecorded 8.5 hours? With no proof of bad behavior, they, the cops, could not be charged, would be free to walk and the DA could do his false and misleading press releases clearing the cops since no “Proof” of wrongdoings existed. [u]Come on Reisig, fix this sloppy honest police work where the cops recorded the entire interview. OH wait, it did not matter since the DA was able to hide all the recordings from the jury anyway and the jury only heard parts of the confession that the DA wanted them to hear.[/u] Glad we cleared that up.

  11. David M. Greenwald

    I meant to take that line out, oh well. You and your son are not of one mind, but you both have a tendency to raise issues that could be addressed through google. Particularly I have had to spend a good deal of time looking into some of the school issues and even involved Bruce colby to verify information.

    I explained in another most my citation of both. A number of people involved with the innocence project are conservatives, I don’t think it’s a partisan issue.

    “In fact in one documentary, I watched them argue against a second DNA test of their client, when the first DNA test was highly questionable. They did not care about whether this guy was innocent or not, they were looking for another notch on their belt… “

    which documentary?
    As I explained earlier,

  12. hpierce

    Elaine… remember, philosophers look for “truth”; scientists look for facts/explanations; attorneys look for facts that support their arguments; others look for facts to support their opinions which they ‘market’ to generate interest/controversy/income. Rush L. is a great example of the latter.

  13. JustSaying

    [b]More Public Education Clearly Needed on [s]—Plastic Bags—[/s] Moses/Daughter Rape Investigation Issues[/b]

    So, why are you back to rehash the Moses case and to again try to argue that his case is somehow tied to the “convicted by false confession” findings? This never has been about “false confessions”; it’s all about the Bennie Moses case.

    At least this time you begin by pointing out that Mr. Moses’ confession was authentic, not false, and that the interrogation involved no violations and the techniques “were (likely?) completely legal.” You also agree that he’s guilty as charged, based on the “broad swath” of evidence gathered by investigators and presented at trial.

    Furthermore, you note that police videotaped the interrogation, a practice which, as you report, “has been shown to decrease the number of false confessions and increase the reliability of confessions as evidence.”[quote]“…but that should not let authorities off the hook….But again, that should not excuse the police…”[/quote] Oh, yeah? For what? Doing everything “by the book”?

    [quote]“Omitted from what the jury saw was a section at the beginning of the interview, where Mr. Moses asked if he were under arrest. The officer told him that he was not under arrest and he could leave at any time. Soon after, a sergeant came in and told him he’s not going anywhere….The confession also took place after he was told he was not under arrest, that he was free to leave, and then when he tried to leave they prevented him from doing so.[/quote]You’ve noted this before as though it somehow contributed to his decision 8 or 9 hours later to confess. What was done wrong here? What is the context as you saw it on the videotape?

    One has to wonder if DPD Fisher really did ask the judge to show these few minutes of tape–and was turned down–or if she figured it would be more helpful if the jury did not see the episode that she’d later try to convince the jury had tainted his confession.

    In any case, it doesn’t seem to have affected the case one way or another, and it’s difficult to see why you’ve been taking such exception to the “you’re not under arrest, you are under arrest” exchange.

    If Mr. Moses didn’t know that it’s legal and proper for police to mislead (lie) to those who have been arrested, he missed a valuable education during his many years of crime and incarceration. What supports your claim that it wasn’t his own fully informed, carefully weighed decision to confess? I guess that you start out by saying, as you have before that:[quote]“…everything about the interrogation was coercive and improper.”[/quote] I’d say “everything” and “coerce” are serious exaggerations and “improper” is not true at all. The only thing you’ve offered is your opinion that all existing laws, regulations and procedures, and Supreme Court rulings on proper interrogation practices are wrong and should be changed. Until that happens, however, you have no basis for making a case that police have sinned when they haven’t done anything wrong.[quote]“No lawyer is going to allow his/her client to confess.”

    “What does that tell you? Sometimes a person wants to confess to a crime. If they do willingly, then they will.”[/quote] It tells me the lawyer is not there to help find out what happened but to stop anything from being said or anything from occurring that could be used against the client at trial. Perhaps you missed the point Elaine was making? No, the guilty will not confess just because “a person wants to” if we require an attorney in the room!

    What that also tells me is that there would be no confessions except those orchestrated by defense attorneys in exchange for reduced charges. That also tells me that there would be more murdered women, children and men whose bodies never are located. That also tells me there would be more unsolved crimes and more untried criminals at large to keep committing crimes.

    [quote]“For law enforcement agencies, recording interrogations can prevent disputes about how a suspect was treated, create a clear record of a suspect’s statements and increase public confidence in the criminal justice system. Recording interrogations can also deter officers from using illegal tactics to secure a confession.”[/quote] Apparently not, if Judicial Watch is on watch.

  14. Musser

    lol, it appears my figure was dead wrong. I don’t know where I got it from, but it does not appear accurate. Anywho, it is really not clear to me based on the comments by medwoman and the justice dept. just how many of these people re-offend. 5.3% to 52% is a huge range.

    having said that, I looked up the innocence project and it was indeed co-founded by peter neufeld and barry scheck. and those attorneys got a guilty man off using underhanded tactics. Elaine and I know because we saw the trial. they accused the police of a conspiracy that did not exist. thus I re-state my initial assertion that you cite that source at your own peril. when you rebutted my 99% figure you used the justice dept. a much more credible source, and made it considerably more difficult for me to argue. I would stick to those sources.

  15. Musser

    having said all that, I do think it is important that the public be eduated – that if you are held at a police station, you must be charged with a crime or you are free to leave even if the police say you cannot. otherwise they are violating your rights. when the other guy came in and said “you arent going anywhere” the defendant could have said “if I am not under arrest, you need to let me go” and left.

  16. JustSaying

    [quote][b]Elaine: [/b]”Ah yes, the Innocence Project – the lawyers that were able to get OJ Simpson acquitted”

    [b]David:[/b] “The Innocence Project had nothing to do with OJ Simpson. The Innocence Project is a group that started to investigate cases where the individual was already convicted and determine, usually by DNA evidence, that they were actually innocent. OJ Simpson was acquitted by private attorneys like Johnny Cochran and the likes who were paid for by OJ at great personal expense.”[/quote] [quote][b]Wikipedia:[/b] “Even with no murder weapon, no good fingerprints, and no witnesses to the murders, the prosecution was confident that they presented a solid case. Supported by DNA evidence, they fully expected a conviction….

    Attorneys specializing in DNA evidence, [b]Barry Scheck and Peter Neufeld[/b], were hired to attempt to discredit the prosecution’s DNA evidence, and they argued that Simpson was the victim of police fraud and what they termed as sloppy internal procedures that contaminated the DNA evidence.”[/quote]David, there is no doubt that Elaine is right that these both were part of the Simpson defense team and as well as creators of the Innocence Project. This is easily verifiable in two minutes by looking on line.

    I always like to think the two have been driven by guilt and humiliation since 1995 because of their critical role in freeing a guilty murderer for the money.

    Regardless of their motivation, I think they’ve been pursuing worthy goals during the last 15 years. Anything they (and the rest of us) can do to stop wrongful convictions is important. According to the project, the most common causes of wrongful convictions are:
    x Eyewitness Misidentification
    x Unvalidated or Improper Forensic Science
    x False Confessions / Admissions
    x Government Misconduct
    x Informants or Snitches
    x Bad Lawyering

    Of course, none of this has anything to do with with the investigation and trial of Bennie Moses. None of these six problems were involved in his case.

    Most importantly, he was not wrongly convicted. He was found guilty beyond a reasonable doubt of forcing his own 12-year-old daughter into sex acts with him until he was caught nine years later.

    To claim that authorities did something wrong in the way they apprehended, investigated and tried him is just bogus, as they say. And to try to shoehorn his case into the Innocence Project’s bunch of innocent defendants is somewhat offensive, in my opinion.

  17. medwoman

    To Musser – and I for my part was unaware of the identity of the founders of the Innocence Project so I appreciate the information. And having also watched the Simpson trial found their tactics reprehensible. However I do not believe that this detracts from the worthiness of a program designed to exonerate the innocent.

  18. Musser

    To Medwoman – oh yes it does detract – very much so. the programs co-founders use reprehensible tactics in court – as you appear to agree, thus how can I trust a project they themselves create as being truthful and honest?

  19. Roger Rabbit

    [b]According to the project, the most common causes of wrongful convictions are:
    x Eyewitness Misidentification
    x Unvalidated or Improper Forensic Science
    x False Confessions / Admissions
    x Government Misconduct
    x Informants or Snitches
    x Bad Lawyering [/b]

    Taking this list I see many possible issues that apply. [b]False Confessions[/b] are gotten from extended interview, interview tactics, failure to corroborate interview facts, so this could clearly be the case. The fact that [u]the Jury was not allowed to hear the entire interview raises suspicions.[/u] Which could be bad lawyering, lawyer tricks, poor ruling by judge, or the DA (lawyer) hiding evidence again. Which all points to [b]Government Misconduct[/b], either intentional, by accident or by lawyer tricks of bending the rules to fit their goals. As for the [b]forensic issues[/b], I think there was issues here as well since all DNA evidence was not collected or searched out.

    Bo[i][u]ttom line is the system is run by lawyers for lawyers[/u][/i], it is all a chess or shell game where the lawyers get to interpret the rules, bend the rules, confuse the rules, change the rules, exception to the rules, judges rule on the rules, the rules unknown by some and missed or forgotten by others. The entire process from jury selection, to jury questioning to withholding some evidence, only giving partial tapes, the DA defining what he thinks the Defense has a right to get and what they do not get, coaching witnesses, making deals with crooks so they will testify to what helps you, it all makes the water muddy, confusing and creates much more room for error. [b]Can you imagine if the Defense could make promises to get people out of jail if they testified for them in court?[/b] Everyone would be outraged if this was allowed, yet the DA does this everyday and no one has a problem.

    The bigger problem is the only ones that suffer from this game is the victims, family and suspects, the lawyers still get pain, never get charged, they have confidentiality so it is basically legal for them to hide the truth and then people want to defend this [u]”Great system”[/u] [b]It don’t look so great to someone who really understands it.[/b]

  20. medwoman

    To Musser

    I think it is important to make a distinction between the outcomes of a project and the character of it’s founders. Some of our “founding fathers”
    Were less than exemplary in their personal lives…slave owners, fathers of what at the time were considered “illegitimate children” yet still managed to found a very worthy project, our county. I would not denigrate the worthiness of exoneration of innocent prisoners because of a distaste for the previous disreputable actions of the projects founders.

  21. JustSaying

    Agree. The hopeless, innocent people finally freed after years of confinement and unsuccessful appeals are very thankful for the Innocence Project’s work. We should be, as well.

  22. E Roberts Musser

    “Who produced the documentaries you are citing about The Innocence Project?”

    LISTEN CLOSELY OH YOU DOUBTERS OF THE UNASSAILABLE SAINTHOOD OF THE INNOCENCE PROJECT: PBS

    I sat and watched as the Innocence Project vigorously pushed for a prisoner to be exonerated on a very questionable DNA test, which clearly did not eliminate the prisoner as a suspect. The prosecution was hopping mad, and insisted that a second DNA test be run, to ensure the prisoner was indeed not guilty. The defense (Barry Scheck) doggedly insisted the questionable DNA test was “enough”, but was wisely overruled by the disgusted judge. A second DNA test was run, that fully exonerated the prisoner. Now, if Scheck was so certain his client was innocent and wanted all doubt removed, why would he object to the second DNA test? Because Scheck was more concerned about a notch on his belt than whether the prisoner was truly innocent. Scheck’s antics were pathetic and very agenda driven…

    I have no doubt that the Innocence Project does good work, but the road to hell is paved w good intentions… In light of the OJ Simpson case and what I saw on PBS, it is clear the Innocence Project has a definite agenda that is hardly pure, and cannot be relied on when it comes to passing judgment (pardon the pun) on all things right and relevant in the law. It is akin to taking the NY Times as gospel…

  23. E Roberts Musser

    dmg: “You and your son are not of one mind, but you both have a tendency to raise issues that could be addressed through google.”

    With all due respect, if you are going to accuse me of not researching, you need to be more specific in your examples so I have an opportunity to defend against such an accusation 🙂

  24. medwoman

    EMR

    My question was for information only since I had not seen any documentary or done any significant research on the Innocence Project or it’s founder. As a matter of fact, it was your challenge of DMGs sources that led me to believe that I was inadequately informed on this matter.
    Regardless of your assessment of the integrity of the founding members, I still do not see how that totally debases the integrity of the entire group or the goals of the group as regards exonerating the truly innocent. I truly hope that my practice of medicine and personal integrity or those of most of my colleagues will never be judged by the self serving, mean spirited and bordering on unethical nature of a former chair of department in which I was working.

  25. JustSaying

    A lot like dmg’s insistence about you pointing to the genesis of the Innocence Project that he could have “addressed through Google,” this is another example how personalizing the discussion serves no one. Back to the issue, I think you’re expecting the same kind of perfection and moral purity here that David demands of Reisig and local law enforcement.

    In fact, the “more interested in another notch in his belt than in justice” is a Judicial Watch staple. It doesn’t seem surprising that Scheck would argue that one was enough if he thought it was. As you point out, the follow-up DNA confirmed his client’s innocence.

    With respect to the OJ case, I’m sure the pair would contend that every rich person deserves a quality defense regardless of how much money they had to accept to take the case.

    Maybe I’d have a somewhat different view if I’d seen the documentary, so I did my due diligence to trn your PBS program reference without success. Now I’m thinking that “Listen Closely…” wasn’t really the PBS program title? The ones I did find were: “Jerry Miller and the Innocence Project,” Presumed Guilty,” “The Innocents” and “The Case for Innocence.” All seemed positive about the Innocence Project, so I didn’t watch any of them.

  26. JustSaying

    [quote]“…making deals with crooks so they will testify to what helps you, it all makes the water muddy, confusing and creates much more room for error. Can you imagine if the Defense could make promises to get people out of jail if they testified for them in court?”[/quote] There you go again, Mr. Rabbit, once again coming up with something with which I can wholeheartedly agree. This standard practice never bothered me much before, but the way you turn it around makes it seem more unfair that I’d thought before.

    Even realizing that defense attorneys get to challenge the credibility of snitches, who really knows what they expect even if there’s no overt promise and, and what benefits they might get down the road, long after the accused is off to prison? Maybe, upon passing the bar, all criminal attorneys should get 15 “Get Out of Jail” cards they can use with “witnesses” at times of their choice during their careers.

  27. Superfluous Man

    JS,

    “I always like to think the two have been driven by guilt and humiliation since 1995 because of their critical role in freeing a guilty murderer for the money.

    Regardless of their motivation, I think they’ve been pursuing worthy goals during the last 15 years.”

    The Innocence Project was founded in 1992. Regardless, guilt and humiliation? They have a critical job to do-criminal defense attorneys. Did they do anything unlawful? The defense creates doubt, if the state’s case can’t withstand that and the jury so decides…that’s grounds for labeling the defense all sorts of things. Give me a break.

    What would you have liked the defense to have do differently? Surely, if it were you who were on trial, you would seek counsel who restrained him or herself in the courtroom, so as to not offend on lookers and the public’s perception re: how they think a defense attorney should advocate for his/her client’s innocence.

    Haven’t heard many criticize the prosecutors whose court room theatrics, antics and “underhanded” tactics have led to incarceration of innocent individuals.

  28. Superfluous Man

    ERM,

    “it is clear the Innocence Project has a definite agenda that is hardly pure, and cannot be relied on when it comes to passing judgment (pardon the pun) on all things right and relevant in the law.”

    Surely, the services of such a questionable organization would have not been sought and utilized by the state…

    From the Dallas County DA’s Office

    “The Innocence Project of Texas is a non-profit organization dedicated to securing the release of those wrongfully convicted of serious crimes in the State of Texas. The organization is currently working in partnership with the Dallas County District Attorney’s Office to review hundreds of previously denied post-conviction requests for DNA testing filed by inmates convicted of offenses in Dallas County.

    With the assistance of volunteer law school students and experienced attorneys, the Innocence Project of Texas is reviewing these claims one-by-one to determine whether a person has been wrongfully convicted via the use of forensic DNA testing that can conclusively prove an individual’s guilt or innocence.”

    http://www.dallasda.com/innocence_project_of_texas.html

    Can you state what the specific “agenda” of the Innocence Project is, or at least what you believe it to be?

  29. JustSaying

    SM, sorry my humor attempt got in the way of my effort to commend the work of the Innocence Project and its founders.

    I believe everyone in the dock should get the best defense possible, but I give higher grades to public defenders and others who take on difficult cases for those who might otherwise not get a fair shake in the system.

    I’m curious how lawyers feel when it comes to their attention that the person they “got off” actually was the murderer. Does it make a difference in their mind whether they defended pro bono or took in a million-dollar fee? Does it matter if it was “drug-related” (some victim with little community support) or involved a high-profile defendant and case that people around the country follow and remember?

    Even it “they were just doing their job,” might they struggle with the way they played their critical role in freeing a murderer and the subsequent impacts of the injustice? Maybe they would redouble their more fulfilling and favorably viewed projects.

  30. AdRemmer

    SM, when you write [quote]Surely, the services of such a questionable organization would have not been sought and utilized by the state… [/quote]

    How is it you conclude that the DA “sought?” I read the article with the eye that when the IP seeks to do pursue a case that the DA cooperates with them.

  31. E Roberts Musser

    SM: “Can you state what the specific “agenda” of the Innocence Project is, or at least what you believe it to be?”

    The Innocence Project led by Barry Scheck and Peter Neufield is a worthy cause, but the two founders have hidden agendas. If you have ever witnessed these two in action, you will better understand what I am talking about. They are not seekers of the truth, like many would like to believe. They are lawyers zealously trying to defend their clients, regardless of guilt or innocence. Now they have become pretty careful about only taking on those cases in which DNA evidence can exonerate – nothing wrong w that. But both Scheck and Neufield have a penchant for destroying the reputations of crime labs and crime scene technicians; planting doubt where none should exist; not wanting corroborating tests done if it would challenge the innocence of their clients, and the like. Until you have seen these two in action, you cannot fully understand what I am talking about. The show I watched was on PBS, and clearly was meant to be supportive of the Innocence Project, but if you observed w any kind of objectivity, the case I mentioned should have bothered you…

  32. JustSaying

    [quote]“But both Scheck and Neufield have a penchant for destroying the reputations of crime labs and crime scene technicians; planting doubt where none should exist….”[/quote]Yesterday’s [u]Bee[/u] carried an interesting (and outrageous) McClatchy story about the U.S. Army Criminal Investigation Laboratory errors made (many intentionally) by lab analyst Phillip Mills. According to McClatchy investigation, of 465 cases Mills handled from 1995 to 2005, many had problems.

    The wrote about one sailor who “was convicted in 1999 and sentenced to two years in prison and a bad-conduct discharge. It was only after (he) was released that military officials discovered what Andrew Effron, the chief judge of the U.S. Court of Appeals for the Armed Forces, called ‘Mills’ history of cross-contamination, violation of laboratory protocols, incomplete and incompetent analysis as a DNA examiner and thoroughness issues as a serology examiner’.”

    After checking out the analyst’s sorry record, the military apparently made little effort to notify those affected by his work in the 465 cases. As David is wont to point out, consider how many innocent military personnel haven’t received justice because of the bad lab findings and how many guilty are wandering around free, committing more crimes.

    Other labs and technicians have been in the news from time to time for bad work. As I recall, even the FBI lab went through a similar period of fraudulent reports. I don’t think their reputations could be destroyed by two attorneys unless it was deserved. Simple charges don’t ruin lab reputations, but it’s tough to maintain a good reputation if their work is fraudulent or inept.[quote]“They are not seekers of the truth, like many would like to believe. They are lawyers zealously trying to defend their clients, regardless of guilt or innocence.”[/quote] Is this not an attorney’s sworn duty? This seems like an odd thing for you to criticize.

    I’ll try to track down the offensive PBS program; appreciate the clarification about the program’s “supportive” approach to the Innocence Project.

  33. Superfluous Man

    JS,

    “sorry my humor attempt got in the way of my effort to commend the work of the Innocence Project and its founders.”

    No worries.

    “but I give higher grades to public defenders and others who take on difficult cases for those who might otherwise not get a fair shake in the system.”

    Higher than high paid private defense attorneys? As that what you’re saying? I agree and public defenders don’t have a choice, that’s the job and constitutional obligation of the office.

    “I’m curious how lawyers feel when it comes to their attention that the person they ‘got off’ actually was the murderer. Does it make a difference in their mind whether they defended pro bono or took in a million-dollar fee? Does it matter if it was ‘drug-related’ (some victim with little community support) or involved a high-profile defendant and case that people around the country follow and remember?”

    I feel like defense attorneys understand their role and probably have had to respond to the question “how could you defend those people” and the like more times than they care to remember, so they’re not too worried about the public’s scorn.

    Interestingly, the Dallas DA has received criticism from fellow prosecutors for his efforts to free the innocent…

    From the WSJ: “Where I think he’s doing a grave disservice is trying to create this image that the criminal-justice system is fatally flawed and that only people like Craig Watkins can save it,” says Joshua Marquis, the district attorney in Clatsop County, Ore., who serves on the board of the National District Attorneys Association.

    “Even it ‘they were just doing their job,’ might they struggle with the way they played their critical role in freeing a murderer and the subsequent impacts of the injustice?”

    There have certainly been many a TV drama based on that very “struggle.” However, I feel like defense attorneys are more likely to express their disappointment in the justice system (or what more they could’ve done for their client) than they are in the possibility that their adequate representation freed a person whose innocence is questionable in their own minds.

  34. Superfluous Man

    Ad,

    “How is it you conclude that the DA ‘sought?’ I read the article with the eye that when the IP seeks to do pursue a case that the DA cooperates with them.”

    To be honest, that was based on what I remembered from watching “Dallas DNA” on the Investigation Discovery channel, which was a documentary TV show on the newly formed Conviction Integrity Unit created by DA Craig Watkins a few years back.

    Here’s a quote from the WSJ, “Soon after Mr. Watkins was sworn in, DNA evidence cleared a man in a pending case. Disturbed, Mr. Watkins asked the Innocence Project of Texas to begin reviewing all DNA requests, even those that had been rejected previously.”

    What I quoted earlier was just a quote from the Dallas County DA’s Office re: their work with the Innocence Project of Texas.

  35. Superfluous Man

    ERM,

    “The Innocence Project led by Barry Scheck and Peter Neufield is a worthy cause, but the two founders have hidden agendas. If you have ever witnessed these two in action, you will better understand what I am talking about. They are not seekers of the truth, like many would like to believe. They are lawyers zealously trying to defend their clients, regardless of guilt or innocence.”

    I don’t understand what the hidden agenda could be. Their egos? Bringing attention to the inherent flaws in the justice system? I’ll look for the telling video footage, though.

    You’re being critical of an attorney zealously representing his/her client? That is a desirable, is it not? Maybe I’m missing something here, but I thought that once they take on a case, their job is to provide the best possibly representation for their client.

    “Now they have become pretty careful about only taking on those cases in which DNA evidence can exonerate – nothing wrong w that. But both Scheck and Neufield have a penchant for destroying the reputations of crime labs and crime scene technicians; planting doubt where none should exist; not wanting corroborating tests done if it would challenge the innocence of their clients, and the like.”

    What’s wrong with attacking the sources of the questionable practices? And if their attacks are meritless, so be it. Again, speaks to the representation issue…what would you rather they do? It’s not for you to decide in which case and to what level doubt exists…the triers of fact do.

    The corroborating test issue, I’m not at all familiar with the particulars of that case, so I have no idea whether that is relevant criticims of the Innocence Project. It’s kind of a specialized field and strategy is surely a part of the game, so for all I know, that was a chess move in what can be a long and painful game with the justice system.

    “Until you have seen these two in action, you cannot fully understand what I am talking about. The show I watched was on PBS, and clearly was meant to be supportive of the Innocence Project, but if you observed w any kind of objectivity, the case I mentioned should have bothered you…”

    I feel like you have witnessed horror, so maybe I can track down the footage and see for myself.

  36. Roger Rabbit

    [quote]Haven’t heard many criticize the prosecutors whose court room theatrics, antics and “underhanded” tactics have led to incarceration of innocent individuals. [/quote]

    I do. 🙂

  37. JustSaying

    [quote]“Higher than high paid private defense attorneys? (Is) that what you’re saying? I agree and public defenders don’t have a choice, that’s the job and constitutional obligation of the office.”[/quote] Yes, million-dollar fees may cloud [s]men’s[/s] attorney’s minds. I can’t prove this, it’s just kind of a gut feeling based on seeing such problems in most every profession and trade over the years. It’s not that I don’t respect the job defense attorneys do regardless of their fee schedules, but I admire those who do the work for salary or for free.[quote]“…so they’re not too worried about the public’s scorn…(and not disappointed about)…the possibility that their adequate representation freed a person whose innocence is questionable in their own minds.”[/quote]Actually, that’s not the scenario I tried to suggest. I wonder about those who [u]know[/u] (or find out later) that they’ve successfully defended a murderer. Would they be depressed, experience repentance, throw themselves with new vigor into good works for the rest of their careers?

    Let me give you a hypothetical case….well, never mind….

  38. medwoman

    I am really enjoying the ideas being discussed in your posts. I have no experience with the judicial system and so am going to pose what may be a very naive question to any who care to answer. It seems to me that the basis for the problems we are discussing lies in the adversarial nature of our legal system. It is hard for me to understand how the “truth” is arrived at and “justice” is served when we have created a system in which two opposing teams are seeking to to prove their case in the case of the prosecution or destroy that case in on the defense.
    It would seem that this necessarily creates a situation in which “winning” becomes more important than either “truth” or “justice”.
    Your thoughts?

  39. JustSaying

    [b]medwoman[/b], there are real attorneys who post here. I know they could give you educated, well-thought-out responses to your not-at-all naive question. They could compare various systems and their advantages/disadvantages for you.

    My limited-knowhow take on your comments:

    1. Forget about squeezing out the truth in a courtroom. The guilty and the innocent only know their own truths and their stories are liable to sound about the same (since the guilty won’t tell the truth because…well, they’re guilty and usually don’t want to be found out and pay for their crimes).

    2. Everyone “wins” when the innocent are found not guilty and the guilty are found guilty. I think that’s the ideal goal of “justice” and our system has a pretty good record in seeking justice.

    3. I can’t come up with a better way to be fair and just than to require high burdens for the state (“proof beyond reasonable doubt,” “presumed innocent until prove guilty” by unanimous jury vote, etc.) than have the evidence tested in the adversarial courtroom with a referee to keep everyone following the rules we’ve developed over 200 years of error-prone experience.

    4. So, now we have a system that grudging agrees with Blackstone that “better that ten guilty persons escape than that one innocent suffer.” In that case, the only “justice” served is a systemic one, and “truth” is a complete casualty.

    5. My bonus opinion is a somewhat personal one: my innocent relative, Margaret Scott, was executed. Her trial was officially ruled unfair shortly after it was held, Judge Samuel Sewall publicly apologized and Margaret was exonerated in 1957, but those judgements came too late for her, of course, because she’d been hanged long before.

    While visiting her hometown of Rowley (Mass.) a few years ago, my capital punishment epiphany struck. “Justice” doesn’t really exist in a system that kills people who we [u]think[/u] are guilty of [u]any[/u] crime. “Beyond reasonable doubt” isn’t good enough, and “beyond all doubt” won’t work as a standard for killing since our justice system has no way to be absolutely certain about who did the deed.

    We can deal with an imperfect system, but pardoning dead people doesn’t solve that imperfection. And, most prosecutors act very threatened even by attempts to re-look at live prisoners’ evidence with new technologies, as Superfluous Man noted. Step #1 for justice, then, in my opinion, is to join the 160-plus countries that have abolished the death penalty, officially and unofficially.

    6. Since “truth” is so elusive, it’s troublesome that “Justice Watch” is so certain in the criticism it heaps Yolo County’s justice efforts. People found “not guilty” are labeled “definitely innocent” and the victims of a cruel, dysfunctional justice system operated by an unethical DA and rogue law enforcement. People who plead guilty–or are found “guilty beyond reasonable doubt”–are labeled “innocent” or “not so guilty” and the victims of a cruel, dysfunctional justice system operated by an unethical DA and rogue law enforcement.

    There have been many such JW reports in recent months, but the most recent case (the one that started these lengthy discussions) is the misguided epitome of these stories, in my opinion. Here we have a man described as having “turned his life around” found guilty of the most flagitious crimes with overwhelming evidence gathered by dedicated law enforcement in a manner consistent with law.

    Yet, JW finds numerous ways to be critical of the investigation and trial because David wants changes (as I do) in laws to assure we deal fairly with accused people. My concern is that JW needs to rely on more than interviews with the accused and their defense attorneys for the “truth.” JW should wait until there are enough verifiable facts to make a compelling case for charging improper or unlawful acts on the part of our criminal justice players.

  40. JustSaying

    I get such a headache looking at holes in JW reports of malfeasance. I know David and I agree on many of the things needed for more fair treatment of accused people. But, I’m confident that JW would be a stronger voice for justice if more time and effort would be spent on fewer cases, realizing that every case won’t provide evidence of incompetence or unethical conduct.

    Yolo County doesn’t justify having defense attorneys constantly characterized as having good arguments when they simply are pulling out all the reasonable-doubt points, however unreasonable they might be. It doesn’t help credibility and influence to keep characterizing prosecution attorneys with terms like “tried to trip him up…hammered on him” and claim to know what the DDAs are thinking.

    JW has constructed a bad-guy prosecution/good-guy defense picture of Yolo County’s that is too black and white to be accurate, all in a well-intentioned effort to make things better. It’s a good thing David’s here to keep watch because every other traditional watcher in the county has abdicated. He likely has caused changes in the way authorities view their roles, even if just because they know he’ll publish another outrageous story if they try something outrageous.

    I don’t want to pass on my headache to David because I believe in what he’s trying to do. So, I’m ready to concentrate on the [u]Vanguard[/u]’s other issues for awhile–ones that also seem under-reported in our newspapers. Plus, I love to watch him fume when Dunning writes another funny piece! Just sayin’.

  41. E Roberts Musser

    JS: “I get such a headache looking at holes in JW reports of malfeasance. I know David and I agree on many of the things needed for more fair treatment of accused people. But, I’m confident that JW would be a stronger voice for justice if more time and effort would be spent on fewer cases, realizing that every case won’t provide evidence of incompetence or unethical conduct.”

    Well said, and I concur…

    Defense attorneys like Scheck and Neufield have a sworn duty to zealously represent their clients. They are not necessarily about finding the truth. So one has to be very careful when using the Innocence Project as a resource for correct information. Any data/research/info is going to tend to be slanted towards favoring defendants, whether innocent or guilty. So citing the Innocence Project as gospel is just inappropriate, IMHO. You have to remember what their particular bias is – in favor of the defendant. It doesn’t mean Scheck/Neufield are not doing good work; it does not mean Scheck/Neufield are not doing a good job representing their clients. It just means you have to objectively acknowledge they do have a bias in favor of defendants – it is their “agenda” if you will.

    medwoman: “It seems to me that the basis for the problems we are discussing lies in the adversarial nature of our legal system. It is hard for me to understand how the “truth” is arrived at and “justice” is served when we have created a system in which two opposing teams are seeking to to prove their case in the case of the prosecution or destroy that case in on the defense.”

    Supposedly the idea is that if each side rigorously puts to the test the opponent’s evidence/arguments, “the truth will out”. But the justice system has many imperfections which make this model less than ideal. However, what other system is better is the million dollar question? Like Just Saying and dmg have pointed out, there are many, many practices within the criminal system that need reform. Mandatory videotaping of interrogations would be a simple reform to institute. But how do you remove corruption and coercion from the plea bargaining system? It is so ripe w abuse its disgusting, but what is the better alternative? And so forth – there are too many injustices, that an entire huge book would not be enough to enumerate them all…

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